Proceeds of Crime Bill (Hansard, 24 July 2002)

HC Deb 24 July 2002 vol 389 cc1050-5 1050

§ Lords Amendments in lieu of certain Amendments to which the Commons have disagreed, considered.

§ Lords amendment: No. 4B, in lieu of Lords amendment No. 4, to which the Commons have disagreed, in clause 75, page 48, line 4, at end insert— (3A) But an offence does not satisfy the test in subsection (2)(d) or (e) unless the defendant obtains relevant benefit of not less than £5000. (3B) Relevant benefit for the purposes of subsection (2)(d) is—

(a) benefit from conduct which constitutes the offence:
(b) benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the defendant has been convicted;
(c) benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for an offence mentioned in paragraph (a) or (b).

(3C) Relevant benefit for the purposes of subsection (2)(e) is—

(a) benefit from conduct which constitutes the offence;
(b) benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for the offence mentioned in paragraph (a).

(3D) The Secretary of State may by order vary the amount for the time being specified in subsection (3A).

7.32 pm

§ The Under-Secretary of State for the Home Department (Mr. Bob Ainsworth)
I beg to move, That this House agrees with the Lords in the said amendment.

§ Mr. Deputy Speaker (Sir Alan Haselhurst)
With this it will be convenient to take the following Lords amendments: No. 4C, in clause 341, page 200, line 3.

No. 4D, in clause 348, page 203, line 18.

No. 4F, in clause 353, page 206, line 41.

No. 4G, in clause 360, page 211, line 19.

No. 4H, in clause 366, page 213, line 44.

No. 4J, in clause 451, page 260, line 25.

No. 4K, in page 260, line 36.

No. 43, in clause 94, page 56, line 7.

No. 43B in clause 145, page 89, line 23.

No. 43C, in clause 375, page 218, line 6.

No. 43D, in clause 382, page 221, line 3.

No. 43E, in page 221, line 17.

No. 43F, in clause 386, page 223, line 35.

No. 43G, in clause 393, page 227, line 47.

No. 43H, in clause 399, page 230, line 21.

No. 43J, in clause 451, page 260, line 32.

No. 43K, in page 260, line 39.

No. 73, in clause 161, page 96, line 13.

No. 73B, in clause 229, page 140, line 4.

No. 73C, in clause 451, page 260, line 25.

No. 73D, in page 260, line 36.

§ Mr. Ainsworth
I think that we are all agreed that one of the requirements for the granting of the investigatory powers and warrants in part 8 should be that it is in the public interest for the court to grant the order or warrant.
1051 When the Bill was introduced, the Government took the view that it was not necessary to replicate in the Bill the provisions in the previous legislation. That was because the Human Rights Act 1998 requires a judge to comply with all the safeguards that are provided by the European convention on human rights, and the Government were satisfied that that would cover the consideration of whether the granting of an investigatory power was in the public interest.
We recognise, however, that there have been continuing concerns, and we therefore decided to introduce an amendment in the other place to make it explicit in the Bill that the public interest test must be an integral part of the court's consideration. Lords amendments Nos. 4C to 4H and 43C to 43H do precisely that.
On Lords amendments in lieu Nos. 4B to 4K, 43B to 43K and 73B to 73D, last Thursday we discussed mandatory as opposed to discretionary confiscation. We cannot agree with the Opposition on that matter. We are determined that the confiscation system remain mandatory, and that we do not go backwards in that regard. The criminal lifestyle tests set out in parts 2 to 4 in theory expose a defendant to the criminal lifestyle regime where that defendant is convicted only of a trivial offence or offences that are not inherently indicative of a criminal lifestyle.
It would be possible for the court to apply assumptions where an offender is convicted of one acquisitive summary offence of any description that lasts for more than six months, or four summary offences of any description, from which only a very small amount of benefit had been derived. The same would be true where an offender was convicted of one offence of any description, from which he had benefited, and had two past convictions of any acquisitive offence. The benefit might be trivial, but a criminal lifestyle confiscation order could still be made.
In practice, the director or the prosecutor would never mount a confiscation proceeding in such an inappropriate case. There is a presentational issue here, however. We have reached the conclusion that it would be better for the Bill to impose a formal threshold before the criminal lifestyle tests can be applied. That will make it clear in the Bill that the authorities will not be able to apply for confiscation orders in trivial cases against offenders who are not convicted of offences specified in the criminal lifestyle schedules.
That is why we tabled these further amendments in lieu in the Lords. They aim to address concerns about the breadth of some of the criminal lifestyle tests, yet they preserve the integrity of confiscation as a mandatory procedure. We are making absolutely no change to the criminal lifestyle regime as it will apply to anybody convicted of one of the scheduled offences. There will be no financial threshold in such cases. But in relation to the other criminal lifestyle definitions, we are content to see a financial threshold imposed.
What we are saying is that for the criminal lifestyle tests to be satisfied, the total benefit from the triggering offences and any other offences taken into account for sentencing purposes will have to be £5,000 or more. The amendments introduce a power for the Secretary of State to change the £5,000 threshold by order. This power will be used, both to take account of inflation, and to respond to different patterns and trends of offending. It will be subject to the affirmative resolution procedure.
1052 I invite the House to agree with their Lordships in their amendments in lieu.

§ Mr. Dominic Grieve (Beaconsfield)
It is with some pleasure that I welcome the amendments that were tabled in the Lords in lieu of their previous amendments, and which the Government are willing to accept as Government amendments.
There is a long history to the matter. On a number of occasions in Committee we expressed concern about the threshold by which people went into the confiscatory regime and were deemed to have a criminal lifestyle. I must say to the Minister, and it would be wise for me to put it on the record, that there is a certain irony in the way in which the Government have finally seen fit to approach the matter. It lacks the flexibility of the judicial discretion route which, as the Minister knows, we preferred.
For instance, if the prosecutor and the Assets Recovery Agency took the view that an individual had committed a number of very minor offences but was nevertheless known to be a serious criminal, under the earlier amendments they might still have been able to initiate the confiscation regime—the Al Capone clause, as it has sometimes been called.
In this case, the Government have refused to go down that road, because they did not want judicial discretion. They have fettered the mandatory provisions in a minor way. In the circumstances that I have just described, the person would be able to escape the confiscatory regime. I accept that, as a matter of principle, it could be argued that that is the appropriate way to proceed, as in those circumstances he would not be deemed to have a criminal lifestyle.
Nevertheless, I entirely welcome what the Government have done in respect of the £5,000 threshold. They are absolutely right that that should not cover the schedule offences—that would go a long way to defeating the Bill. The Government have taken the appropriate course of action. In respect of the other offences, this measure finally lays to rest that much-debated subject of the person who has three convictions for not having a rear light on his vehicle in the previous three-year period. That could be construed to be an offence for gain—indeed, it would be because it would save them the cost of replacing the light bulb—and so would expose them to a parallel world in which they had to run the risk of having their assets confiscated, having been deemed to have a criminal lifestyle. To avoid confiscation, they would have the onerous burden placed on them of having to prove that they did not have a criminal lifestyle and having to show where their assets came from.
I welcome this measure. Of all the concessions that have been gently wrested from the Government during the passage of the Bill, this is the most significant. I am delighted that the Government have finally seen sense on this issue. As the Minister knows, we share with him the desire that this legislation should work. It will work only if it commands widespread public approval and is seen to be fair. This is a major step in that direction, and I am grateful to the Minister that, in the light of what happened in the Lords and the serious reservations that were expressed, he has seen fit to introduce this amendment.
1053 Before we move on to the other matter that falls to be considered—[Interruption.] I did not think that the Minister went into any great length on the amendment of Lord Lloyd of Berwick. If he intended to cover it in this group, I shall reply to it at the same time.

§ Mr. Bob Ainsworth
I did not comment on that.

§ Mr. Grieve
I assumed that the Minister had not spoken to that amendment, and that he was going to do so subsequently. If not, I shall deal with it now.

§ Mr. Ainsworth
I shall seek clarification, but I thought that we were going to discuss that amendment separately when we had disposed of this one.

§ Mr. Grieve
I apologise to the Minister. That is what I had assumed, and that was how I was treating the matter, but I wanted to make sure that I was not failing to take the opportunity to deal with it.
I shall refer to the other amendments in the group that the Minister has spoken to, which relate to the public interest tests that he introduced in respect of investigatory powers. [Interruption.] Again, the Minister will remember that in Committee we went to great lengths to point out that we did not think that the Human Rights Act 1998 on its own should be relied on. [Interruption.]

§ Mr. Deputy Speaker
Order. To avoid any further exchanges and confusion, I refer hon. Members to the list of amendments that was published. These two matters are put down separately.

§ Mr. Grieve
The issue of the public interest test is simple. We think that there should always be a public interest test, and the Human Rights Act should not be used as a fallback position to justify passing legislation that does not include the safeguards that would ordinarily apply. I am extremely grateful to the Minister that, having debated that subject at enormous length in Committee and on other occasions, he has now provided those safeguards. I believe that that greatly improves the Bill. I am delighted that the other place saw fit to introduce that measure through the Government, and that we can accept it.

7.45 pm

§ Norman Baker (Lewes)
I welcome the amendments tabled by the Minister and his colleagues that have been brought back from the House of Lords. It is sensible to have a £5,000 de minimis level. The Minister neglected to mention that that was in amendment No. 280 that was discussed on Tuesday 4 December 2001. If I am not mistaken, it was tabled by my hon. Friend the Member for Mid-Dorset and North Poole (Mrs. Brooke) and me. [Interruption.] The Minister laughs, but the record will show that to be the case.
On that occasion, when I suggested that £5,000 was not a large figure, he said: I am always staggered by the affluence of other hon. Members. The hon. Gentleman has stated that £5,000 is a low figure. If I had obtained £5,000 by committing a crime, I would not consider it to be a low amount. 1054 I shall not say any more, except that I acknowledge that hon. Members are genuinely attempting to steer the legislation in the right direction. However, I cannot see how we could do that without providing escape routes for serious criminals."—[Official Report, Standing Committee B, 4 December 2001; c. 446] Clearly, the Minister has accepted the thrust of my comments on that occasion, although he did not care to mention that in his introductory remarks. Perhaps he was concerned that the Prime Minister would accuse him of wrecking the Proceeds of Crime Bill, as he has accused others who have sought to improve it.
This is a sensible measure. A de minimis level is the right approach. I shall not wind up the Minister further for fear that he will withdraw the amendment or do something else with it.
While on de minimis levels, it is a pity that the Minister did not find a way of dealing satisfactorily with the points that we raised the other day on secure creditors. I shall be out of order if I go on about that for too long, Mr. Deputy Speaker, but I would just say that a de minimis provision would meet some of the concerns that Members have expressed. I hope that, even now, the Minister will consider whether that is a practical way to deal with that point.
The public interest provisions are equally welcome, and it is sensible to introduce them at this stage. Without wishing to be unkind to the Minister, I must say that had the provisions on the £5,000 de minimis level been brought forward earlier, there might not have been the amendments in the House of Lords that have caused him and his colleagues some difficulties. I hope that that shows to the Minister that he should sometimes pay attention to the wisdom that comes from Opposition Members. When he was making his comments about the £5,000 de minimis level, I noticed that his colleagues were nodding sagely as if it were a wonderful proposition. They are the same Members who howled down the proposal when it was made in Committee.
On that note of agreement, I am happy to support the Government in this group of amendments.

§ Mr. Bob Ainsworth
I welcome hon. Members' comments as far as they go. They are right that this is the most significant amendment that they have achieved, but its significance should not be exaggerated. As I said in my opening remarks, and as was said in Committee—I cannot remember in what context the hon. Member for Lewes (Norman Baker) raised the £5,000 de minimis issue and I cannot be bothered to check—in practice, confiscation proceedings for offences such as a missing rear light, which was repeatedly mentioned in Committee, would never be used. This measure puts that assurance in the Bill. If Opposition Members want to believe that it does something significant, they are welcome to do so.
With regard to the public interest, the situation would have been covered by the European convention on human rights. It is now in the Bill. If that makes hon. Members here and in the other place feel more comfortable and able to drop their more significant objections that would have seriously damaged the Bill, I welcome that as well.

§ Lords amendment agreed to.

§ Subsequent Lords amendments agreed to.